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Telephone Consumer Protection Act of 1991 (TCPA)

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Telephone Consumer Protection Act of 1991 (TCPA) VIII. Privacy — Telephone Consumer Protection Act Telephone Consumer Protection Act “Residential Subscriber” An individual who has contracted with a common carrier to provide telephone exchange service Introduction at a personal residence. The Federal Communications Commission (FCC) has issued regulations that establish a national “Do-Not-Call” registry “Seller” The person or entity on whose behalf a telephone call and other modifications to the Telephone Consumer Protection or message is initiated for the purpose of encouraging Action of 1991 (TCPA) 1. The FCC regulations impose purchase or rental of, or investment in, property, goods, or financial penalties on all commercial telemarketers for calling services, which is transmitted to any person. phone numbers on the “Do-Not-Call” registry. For those “Telemarketer” The person or entity that initiates a telephone numbers not on the registry, the regulations set a maximum call or message for the purpose of encouraging the purchase or rate on the number of abandoned calls and require rental of, or investment in, property, goods, or services, which telemarketers to transmit caller ID information. The is transmitted to any person. regulations also modify the FCC’s unsolicited facsimile advertising requirements, which in turn were modified by “Telemarketing” The initiation of a telephone call or the Junk Fax Prevention Act of 2005 and became effective on message for the purpose of encouraging the purchase or rental July 9, 2005. The FCC regulations were, generally, effective of, or investment in, property, goods, or services, which is as of October 1, 2003. transmitted to any person. The FCC regulation expanded coverage of the national “Do- “Telephone Solicitation” The initiation of a telephone call or Not-Call”2 registry by including banks, insurance companies, message for the purpose of encouraging the purchase or rental credit unions, and savings associations. The Federal Trade of, or investment in, property, goods, or services, which is Commission’s (FTC) telemarketing regulations parallel the 3 transmitted to any person. Telephone solicitation does not FCC regulations and apply to all other business entities, include a call or message to any person with that person’s including third parties acting as agent or on behalf of a permission, to any person with whom the caller has an financial institution. established business relationship, or on behalf of a tax-exempt nonprofit organization. Key Definitions: “Abandoned Call” A telephone call that is not transferred to “Unsolicited Advertisement” Any material that advertises a live sales agent within two seconds of the recipient’s the commercial availability or quality of any property, goods, completed greeting. or services, which is transmitted to any person without that person’s prior express invitation or permission. “Automatic Telephone Dialing System and Autodialer” Equipment that has the capacity to store or produce telephone General Requirements of TCPA numbers to be called using a random or sequential number The FCC regulations that implement the Telephone Consumer generator and the capability to dial such numbers. Protection Act of 1991 provide consumers with options to avoid unwanted telephone solicitations. The regulations “Established Business Relationship” A prior or existing address the following: relationship between a person or entity and a residential subscriber based on the subscriber’s purchase or transaction • The FCC’s adoption of a national “Do-Not-Call” registry with the entity within the 18 months immediately preceding that expands coverage to entities regulated by the FTC.4 the date of the telephone call or on the basis of the subscriber’s inquiry or application regarding products or services offered • Under the FCC’s rules, no seller or entity telemarketing on by the entity within the three months immediately preceding behalf of the seller can initiate a telephone solicitation to a the date of the call, and neither party has previously terminated residential telephone subscriber who has registered his or the relationship. An individual may reasonably expect that an her telephone number on the national “Do-Not-Call” affiliate is included in an established business relationship registry. A safe harbor exists for an inadvertent violation of this requirement if the telemarketer can demonstrate based on products offered or the identity of the affiliate. that the violation was an error and that its routine practices include: 1. Written procedures. ____________________ 1 47 USC 227; The Federal Communications Commission final regulations were published in the Federal Register on July 25, 2003 (68 FR 44144). ____________________ 2 The Federal Trade Commission (FTC) maintains the registry adopted by 4 By doing so, the FCC asserts its considerably broader jurisdiction over the FCC. telemarketing than the FTC. Specifically, telemarketing by in-house 3 The Federal Trade Commission final regulations were published in the employees of banks, savings associations, and credit unions, as well as Federal Register on January 29, 2003. (68 FR 4580) other areas of commerce, are covered by the FCC’s authority. FDIC Consumer Compliance Examination Manual — March 2016 VIII–5.1 VIII. Privacy — Telephone Consumer Protection Act 2. Training of personnel. required to maintain records demonstrating that recipients 3. Maintenance of a list of telephone numbers excluded have provided express permission to send fax from contact. advertisements or that there is an existing business relationship. [47 CFR 64.1200(a)(3) and 47 USC 227 as 4. Use of a version of the national “Do-Not Call” amended by the Junk Fax Prevention Act of 2005 registry obtained no more than three months prior to the date any call is made (with records to document • Tax-exempt nonprofit organizations are not required to compliance). comply with the do-not-call provisions of the TCPA. [47 CFR 64.1200(d)(7)] 5. Process to ensure that it does not sell, rent, lease, purchase, or use the do-not-call database in any Examination Objectives: manner except in compliance with regulations. [47 1. Assess the quality of a financial institution’s compliance CFR 64.1200(c)(2)(i)] program for implementing TCPA by reviewing the • Companies must maintain company-specific do-not-call appropriate policies, procedures, and other internal lists reflecting the names of customers with established controls. business relationships who have requested to be excluded 2. Determine the reliance that can be placed on a financial from telemarketing. Such requests must be honored for institution’s audit or compliance review in monitoring the five years. [47 CFR 64.1200(d)(6)] institution’s compliance with TCPA. • Telemarketing calls can only be made between the hours 3. Determine a financial institution’s compliance with of 8 a.m. and 9 p.m. (local time at the called party’s TCPA. location). [47 CFR 64.1200(c)(1)] 4. Initiate effective corrective actions when violations of law • All telemarketers must comply with limits on “abandoned are identified, or when policies or internal controls are calls” and employ other consumer-friendly practices when deficient. using automated telephone-dialing equipment. A telemarketer must abandon no more than 3 percent of calls Examination Procedures answered by a person and must deliver a prerecorded identification message when abandoning a call. Two or Initial Procedures more telephone lines of a multi-line business are not to be 1. Through discussions with appropriate management called simultaneously. Telemarketers must not disconnect officials, determine whether or not management has an unanswered telemarketing call prior to at least 15 considered the applicability of TCPA and what, if any, seconds or four rings. All businesses that use autodialers steps have been taken to ensure current and future to sell services must maintain records documenting compliance. compliance with call abandonment rules. [47 CFR 2. Through discussions with appropriate management 64.1200(a)(4, 5 and 6)] officials, ascertain whether the financial institution is • All prerecorded messages, whether delivered by subject to TCPA by determining whether it or a third-party automated dialing equipment or not, must identify the telemarketing firm engages in any form of telephone name of the entity responsible for initiating the call, along solicitation. with the telephone number of that entity that can be used during normal business hours to ask not to be called again. Stop here if the financial institution itself does not engage [47 CFR 64.1200(b)] directly (or indirectly through a third-party telemarketing firm) in any form of telephone solicitation via telephone or • All telemarketers must transmit caller ID information, facsimile machine. The financial institution is not subject to when available, and must refrain from blocking any such 5 TCPA, and no further examination for TCPA is necessary. transmission(s) to the consumer. [47 CFR 64.1601(e)] • Unsolicited fax transmissions must be preceded by the 3. Determine, through a review of available information, advertiser’s receipt of the express written permission and whether the financial institution’s internal controls are signature of the intended recipient, unless there is an adequate to ensure compliance with TCPA. Consider the “existing business relationship.” However, the express following: permission cannot be conveyed through the use of a • Organization chart to determine who is responsible for “negative option.” Businesses that advertise
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